Free Motion to Alter Judgment - District Court of Colorado - Colorado

Case 1:01-cv-01451-REB-KLM

Document 1063

Filed 10/10/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1451-REB-CBS

(Consolidated with Civil Action Nos. 01-cv-1472-REB-CBS, 01-cv-1527-REB-CBS, 01cv-1616-REB-CBS, 01-cv-1799, REB-CBS, 01-cv-1930-REB-CBS, 01-cv-2083-REBCBS, 02-cv-0333-REB-CBS, 02-cv-0374-REB-CBS, 02-cv-0507-REB-CBS, 02-cv-0658REB-CBS, 02-cv-755-REB-CBS, 02-cv-798-REB-CBS and 04-cv-0238-REB-CBS)

In re QWEST COMMUNICATIONS INTERNATIONAL, INC. SECURITIES LITIGATION __________________________________________________________________________ MOTION BY INTERVENORS/OBJECTORS GRAHAM, FLOYD, HULL and AUSWR TO ALTER OR AMEND JUDGMENT UNDER FED. R. CIV. P. 59(e) TO INCLUDE AWARD OF FEES and COSTS FOR GRAHAM OBJECTORS __________________________________________________________________________ INTERVENORS/OBJECTORS ELDON GRAHAM, HAZEL FLOYD, MARY M. HULL, and the ASSOCIATION OF U S WEST RETIREES (hereinafter "Graham Objectors"), by and through their counsel Curtis L. Kennedy, pursuant to Fed.R.Civ.P. 59(e), hereby move to alter or amend Judgment to include an award of attorney's fees and reimbursement of expenses for Graham Objectors. In connection with this motion, Graham Objectors also request this case be re-opened, for the limited purposes of addressing this motion and their pending motion for an award of attorney's fees and costs. (See Docket 1060 filed on October 5, 2006; Docket 1062 filed on October 10, 2006). As grounds, Graham Objectors state: 1. Statement Pursuant to Local Rule 7.1: On September 29, 2006, the

undersigned counsel wrote to lead counsel specifically named in the January 5, 2006 Class Notice, seeking feedback whether there would be any objection to the following request: "As you know, today, Judge Blackburn entered Docket 1054 ordering this action "administratively closed" pending resolution of the criminal charges against defendant Nacchio in USA v. Nacchio, Case No. 05-cr-00545 (D. Colo.) and that any party may seek to lift the stay and administrative closure on a showing of

Case 1:01-cv-01451-REB-KLM

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good cause. Intervenors-Objectors contend that today's ruling (Docket 1051) sustaining their objections to the requested $96 million fee award and costs and, thereby, reducing the award to $60 million, much as argued by IntervenorsObjectors during the May 19 "Fairness Hearing," has resulted in a benefit very favorable to the class of shareholders. Accordingly, Intervenors-Objectors wish to file a motion for reimbursement out of the $36 million enhance settlement fund the cost of their expert witness fees ­ $23,000 charged by Professor Michael Perino ­ plus a reasonable award of attorney's fees based upon a modest lodestar enhancement. Therefore, pursuant to Local Rule 7.1, this is a request that you advise whether you have any objection to Intervenors-Objectors filing a motion to lift the administrative stay so as to address the issue of an award of attorney's fees and costs for Intervenors-Objectors. While, we are not seeking a bonanza, it would seem best to get this issue resolved before the settlement fund is distributed. Please let me know. Thank you." The only response was that given by Attorney Mike Dowd who stated as follows: "Lead plaintiffs have no objection to the Graham Objectors filing a motion seeking an order lifting the stay for the limited purpose of allowing Objectors to file a motion seeking attorneys' fees and related expenses in connection with their Objections to Plaintiffs' Motion for Attorneys' Fees and Reimbursement of Expenses. Plaintiffs do note, however, that they intend to oppose any such request for attorneys' fees and expenses by Objectors, if this Court lifts the stay to permit the filing of such a motion." 2. On October 5, 2006, Graham Objectors submitted their request to have this case

reopened. (Docket 1060). Today, Graham Objectors timely filed their motion for an award of attorney's fees and reimbursement of expenses, and the arguments and contentions raised therein are expressly incorporated herein. (See Docket 1062) 3. A motion for reconsideration under Fed.R.Civ.P. Rule 59(e) is appropriate where

the court has either misapprehended the facts, a party's position, or the controlling law." Campfield v. State Farm Mut. Aut. Ins. Co., 2006 WL 2594702 (D. Colo. September 11, 2006 (Blackburn J). Here, the Court has entered a judgment without first considering the appropriateness of awarding Graham Objectors attorney's fees for their successful work on behalf of the Settlement Fund and the Class of shareholders. Graham Objectors' objections were -2-

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partially sustained leading to the Court's ruling to reduce attorney's fees from the $96 million Lead Counsel requested to a more reasonable amount of $60 million. In addition, the Court sustained Graham Objectors' objections to excessive in-house photocopying costs, and reduced by $200,000 the amount of expenses to be charged to the Settlement Fund. 4. Graham Objectors' motion (Docket 1062) cites ample legal authority in support

their position for a modest fee award to be paid from the Settlement Fund. See, e.g., Gottlieb v. Barry, 43 F.3d 474, 490-91 (10th Cir. 1994) (fee awarded to objectors because objectors' arguments "did in fact result in a reduction of certain fee and expense awards, and thereby benefitted the class"); Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 854 (10th Cir.1993) (affirming award of fees paid from the common fund to objectors' counsel based on benefit conferred to class). See also Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527, 547 (5th Cir. 1980); White v. Auerbach, 500 F.2d 822, 828 (2nd Cir. 1974) (objectors entitled to attorney fees for improving settlement). Graham Objectors' motion for an award of fees should be resolved before the Settlement Fund is distributed. WHEREFORE, Graham Objectors respectfully request this Court modify the Judgment to include an award of attorney's fees and reimbursement of costs to counsel for Graham Objectors. As explained in Docket 1062, Graham Objectors seek an award of attorney's fees in the amount of $40,500, plus expenses of $24,070.46. to be paid out of the Settlement Fund. Dated: October 10, 2006. s/ Curtis L. Kennedy Curtis L. Kennedy 8405 E. Princeton Avenue Denver, Colorado 80237-1741 Telephone: (303) 770-0440 Fax: (303) 843-0360 Email: [email protected] -3-

Case 1:01-cv-01451-REB-KLM

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Filed 10/10/2006

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Attorney For INTERVENORS/OBJECTORS ("Graham Objectors") CERTIFICATE OF SERVICE I hereby certify that on the 10th day of October, 2006, a true and correct copy of the above and foregoing document was electronically filed with the Clerk of the Court using the CM/ECF system and a courtesy copy was emailed to counsel of record in accordance with the January 5, 2006 Class Notice as follows:
Keith F. Park, Esq. Michael J. Dowd, Esq. LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 [email protected] Lead Counsel for Plaintiffs Alfred Levitt, Esq. BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Ave., N.W., Suite 800 Washington, DC 20015 Tele: 202-895-7567 Fax: 202-237-6131 [email protected] Counsel for Settling Defendant Qwest John Freedman, Esq. ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, DC 20004-1202 [email protected] Tele: 202-942-5316 Fax: 202-942-5999 Counsel for Defendant Arthur Andersen LLP

and a copy of the same was sent via email to OBJECTORS - Association of U S WEST Retirees, Eldon H. Graham, Hazel A. Floyd and Mary M. Hull.

s/ Curtis L. Kennedy

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